Citation Nr: 0722384
Decision Date: 07/23/07 Archive Date: 08/02/07
DOCKET NO. 05-30 260 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico
THE ISSUES
1. Entitlement to a disability rating in excess of 10
percent for otitis media.
2. Entitlement to an effective date earlier than July 13,
1993, for service connection for post-traumatic stress
disorder.
3. Entitlement to an effective date earlier than January 31,
1977, for service connection for a hearing loss disability.
4. Entitlement to an effective date earlier than August 29,
1977, for service connection for labyrinthitis.
5. Whether a June 1977 rating decision denying service
connection for an anxiety neurosis may be challenged on the
basis of clear and unmistakable error (CUE).
REPRESENTATION
Appellant represented by: David Greer, Attorney at Law
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael A. Pappas, Counsel
INTRODUCTION
The veteran served on active duty from June 1951 to May 1953.
When this matter was last before the Board of Veterans'
Appeals (Board) in August 2006, it was remanded to the
Department of Veterans Affairs (VA) Regional Office (RO) in
Albuquerque, New Mexico, to afford the veteran a requested
hearing.
In August 2006, the case was advanced on the Board's docket.
See 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2007); 38
C.F.R. § 20.900(c) (2006).
In June 2007, the veteran appeared at the RO and testified at
a Video Conference hearing conducted by the undersigned
Veterans Law Judge sitting in Washington D.C. The transcript
of that hearing has been associated with the claims file.
Given the ultimate disposition of the current appeal with
respect to the CUE challenge of the June 1977 rating
decision, the veteran and his attorney are advised that, to
the extent that it is their desire to file a motion for CUE
in the February 1979 Board decision that subsumed the June
1977 rating decision, their attention is directed to the
regulations concerning the filing requirements for such
motions at 38 C.F.R. § 20.1400 et seq. (2006).
FINDINGS OF FACT
1. The veteran's otitis media disability is currently
inactive and is not productive of suppuration or aural
polyps.
2. On July 13, 1993, the veteran filed an initial claim for
entitlement to service connection for post-traumatic stress
disorder. Upon VA psychiatric examination in September 1994,
the diagnoses included post-traumatic stress disorder.
3. In October 1976, the veteran filed a claim for an
increased disability evaluation for his service-connected
otitis media. The earliest medical evidence of hearing loss
associated with otitis media is contained in the results of a
VA audiological evaluation dated January 31, 1977.
4. In May 1977, the veteran filed a claim for service
connection for dizziness as secondary to his service-
connected otitis media. The earliest medical evidence of
labyrinthitis associated with otitis media is contained in a
private medical opinion received on August 29, 1977.
5. In a June 1977 rating decision, service connection was
denied for an anxiety neurosis characterized as nervousness.
The veteran perfected an appeal of that decision.
6. A February 1979 Board decision denied the veteran's
appeal as to the claim of entitlement to service connection
for an anxiety neurosis, characterized as nervousness.
CONCLUSIONS OF LAW
1. The criteria for a disability evaluation in excess of 10
percent for otitis media have not been met. 38 U.S.C.A. §§
1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321,
3.951(a), 4.1, 4.7, 4.87, Diagnostic Code 6200 (2006).
2. An effective date earlier than July 13, 1993, for the
grant of service connection for post-traumatic stress
disorder, is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107,
5110 (West 2002 & Supp. 2007); 38 C.F.R. § 3.400 (2006).
3. An effective date earlier than July 31, 1977, for the
grant of service connection for hearing loss, is not
warranted. 38 U.S.C.A. §§ 1110, 1131, 5107, 5110 (West 2002
& Supp. 2007); 38 C.F.R. § 3.400 (2006).
4. An effective date earlier than August 29, 1977, for the
grant of service connection for labyrinthitis, is not
warranted. 38 U.S.C.A. §§ 1110, 1131, 5107, 5110 (West 2002
& Supp. 2007); 38 C.F.R. § 3.400 (2006).
5. The June 1977 rating decision that denied service
connection for an anxiety neurosis, characterized as
nervousness, was subsumed by a February 1979 Board decision,
and is not subject to challenge based on clear and
unmistakable error (CUE). 38 U.S.C.A. § 7104 (West 2002 &
Supp. 2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Notice and Assistance
Upon receipt of a complete or substantially complete
application, VA must notify the claimant of the information
and evidence not of record that is necessary to substantiate
a claim, which information and evidence VA will obtain, and
which information and evidence the claimant is expected to
provide. 38 U.S.C.A. § 5103(a). VA must request that the
claimant provide any evidence in the claimant's possession
that pertains to a claim. 38 C.F.R. § 3.159.
The notice requirements apply to all five elements of a
service connection claim: 1) veteran status; 2) existence of
a disability; (3) a connection between the veteran's service
and the disability; 4) degree of disability; and 5) effective
date of the disability. Dingess v. Nicholson, 19 Vet. App.
473 (2006).
The notice must be provided to a claimant before the initial
unfavorable adjudication by the RO. Pelegrini v. Principi,
18 Vet. App.112 (2004).
The notice requirements may be satisfied if any errors in the
timing or content of such notice are not prejudicial to the
claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005),
rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
With respect to the issue of whether a June 1977 rating
decision denying service connection for an anxiety neurosis
may be challenged on the basis of CUE, , the notice and
assistance requirements codified at 38 U.S.C.A. §§ 5102,
5103, 5103A, and 5107 are not applicable to claims alleging
CUE. Livesay v. Principi, 15 Vet. App. 165 (en banc) (2001).
Moreover, it is the law and not the evidence that is
dispositive in this case with respect to the CUE claim. See
Sabonis v Brown, 6 Vet. App. 426, 430 (1994).
With respect to the claims of entitlement to an increased
rating and entitlement to earlier effective dates, the RO
provided the appellant both pre- and post-initial-
adjudication notice by letters dated in September 2002 and
March 2006. The notification substantially complied with the
specificity requirements of Dingess v. Nicholson, 19 Vet.
App. 473 (2006) identifying the five elements of a service
connection claim; Quartuccio v. Principi, 16 Vet. App. 183
(2002), identifying the evidence necessary to substantiate a
claim and the relative duties of VA and the claimant to
obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112
(2004), requesting the claimant to provide evidence in his
possession that pertains to the claims.
Given that the foregoing notice came both before and after
the initial adjudication, the timing of the notice fully
complied with the requirement that the notice must precede
the adjudication. Moreover, throughout the appeal process,
the veteran had a meaningful opportunity to participate
effectively in the processing of the claims. That is, he had
the opportunity to submit additional argument and evidence.
See for example, the transcript of the June 2007 Board
hearing wherein the veteran and his attorney explained the
basis for their claim.
VA has obtained service medical records, assisted the veteran
in obtaining evidence, afforded the veteran physical
examinations, obtained medical opinions as to the severity of
the disability in question, and afforded the veteran the
opportunity to give testimony before the Board. All known
and available records relevant to the issues on appeal have
been obtained and associated with the veteran's claims file;
and the veteran has not contended otherwise. VA has
substantially complied with the notice and assistance
requirements and the veteran is not prejudiced by a decision
on the claims at this time.
Analyses
Increased Rating - Otitis Media
Service connection has been in effect for otitis media since
the veteran's separation from service in May 1953, and has
been evaluated as 10 percent disabling effective from that
date. In June 1996, the veteran filed the current claim for
a disability evaluation in excess of 10 percent for his
service-connected otitis media. He has advanced no specific
arguments with respect to this claim.
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4.
Separate diagnostic codes identify the various disabilities.
38 C.F.R. § 4.1 requires that each disability be viewed in
relation to its history and that there be emphasis upon the
limitation of activity imposed by the disabling condition.
38 C.F.R. § 4.2 requires that medical reports be interpreted
in light of the whole recorded history, and that each
disability must be considered from the point of view of the
veteran working or seeking work. 38 C.F.R. § 4.7 provides
that, where there is a question as to which of two disability
evaluations shall be applied, the higher evaluation is to be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating is to be assigned.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary
importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
When, after careful consideration of all procurable and
assembled data, a reasonable doubt arises regarding the
degree of disability, such doubt will be resolved in favor of
the veteran. 38 C.F.R. § 4.3.
The veteran's otitis media has been rated as 10 percent
disabling pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6200.
This Diagnostic Code provides that a maximum evaluation of 10
percent is assignable for chronic suppurative otitis media,
mastoiditis or cholesteatoma (or any combination) during
suppuration or with aural polyps.
The veteran underwent VA medical examination of the ears in
November 2002 to evaluate the current manifestations and
severity of his otitis media. A history of chronic otitis
media was noted. The veteran denied any problems with
otalgia or pruritis at the time of the examination. The
examiner noted the veteran's otitis to be inactive, with no
evidence of any active ear disease present.
The evidence establishes that the veteran's otitis media has
not necessitated medical treatment since the veteran filed
his claim for an increased evaluation. Accordingly, an
evaluation in excess of 10 percent may not be assigned.
38 C.F.R. § 4.87, Diagnostic Code 6200.
Although the medical evidence of record indicates that the
veteran's ears are without suppuration or aural polyps, and
would therefore not warrant a compensable rating under
Diagnostic Code 6200, the 10 percent evaluation assigned is a
protected rating as it has been in effect for more than 20
years. 38 C.F.R. § 3.951(b).
The Board also finds an extraschedular rating to be
unwarranted. There is no medical evidence of record that the
veteran's otitis media disorder causes marked interference
with employment (i.e., beyond that already contemplated in
the assigned evaluation), or necessitates any frequent
periods of hospitalization, such that application of the
regular schedular standards is rendered impracticable.
Hence, the Board is not required to remand this matter to the
RO for the procedural actions outlined in 38 C.F.R. §
3.321(b)(1) for assignment of an extraschedular evaluation.
Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).
Earlier Effective Dates
The veteran seeks an effective date earlier than July 13,
1993, for service connection for post-traumatic stress
disorder (PTSD); an effective date earlier than January 31,
1977, for service connection for a hearing loss disability;
and an effective date earlier than August 29, 1977, for
service connection for labyrinthitis. He has generally
argued that he is entitled to retroactive service connection
benefits because these disorders are directly related to his
service-connected otitis media, and he has pursued increases
for the over-all effects of these disorders in combination
for many years. He has also specifically argued with respect
to post-traumatic stress disorder that he has pursued service
connection for an anxiety disorder since 1977, and that the
effective date for service connection for post-traumatic
stress disorder should correspond to his initial 1977 claim
for service connection for an anxiety disorder.
The evidence of record documents that the veteran was
separated from service on May 28, 1953, and that his original
disability claim was received on June 8, 1953. An August
1953 rating decision granted entitlement to service
connection for otitis media (with normal hearing), effective
from May 29, 1953, based upon the date of the veteran's
separation from service.
In October 1976, the veteran filed a claim for an increased
disability evaluation for his service-connected otitis media.
On January 31, 1977, the veteran was provided a VA
audiological evaluation that resulted in the diagnoses of
mild to moderate conductive hearing loss in the right ear,
and mild to severe hearing loss in the left ear. This
represented the initial documentation of hearing loss in the
claims file.
In April 1977, the veteran was provided a VA neuropsychiatric
examination by O.F., M.D., that resulted in a diagnosis of
anxiety neurosis, secondary to ear trauma.
In May 1977, the veteran filed a claim for service connection
for dizziness claimed as secondary to his service-connected
otitis media.
In a June 1977 rating decision, service connection was denied
for nervousness and dizziness.
On August 29, 1977, the RO received a private medical opinion
from J.J.L., M.D., that stated that the veteran "does have
some dizziness when pressure is made upon his left ear drum,
probably due to a small perforation." Dr. J.J.L. also
stated that he did not feel that the veteran's nervousness
was due to his ear disease.
A February 1979 Board decision denied the veteran's appeal as
to the claim of entitlement to service connection for
nervousness, but granted the claim of entitlement to service
connection for dizziness, based upon the private medical
opinion from Dr. J.J.L., received on August 29, 1977 that
stated that the veteran's dizziness was due to his service-
connected ear disease.
A May 1979 rating decision granted a separate noncompensable
rating for hearing loss, effective from January 31, 1977,
based upon the medical evidence of hearing loss found upon
the VA examination of that date. The May 1979 rating
decision also implemented the Board's February 1979 decision
and granted entitlement to service connection for
labyrinthitis (dizziness) as secondary to otitis media,
effective from August 29, 1977, based upon the findings of
the foregoing private medical opinion received on that date.
A March 1983 Board decision determined that a new factual
basis had not been presented to reopen a previously denied
claim of entitlement to service connection for anxiety
neurosis (formerly characterized as nervousness), and the
prior denial remained final.
On July 13, 1993, the veteran filed an initial claim for
entitlement to service connection for post-traumatic stress
disorder. Upon VA psychiatric examination in September 1994,
the diagnoses included post-traumatic stress disorder.
A December 1994 rating decision granted the claim of
entitlement to service connection for post-traumatic stress
disorder, and assigned an effective date of July 13, 1993,
the date of the receipt of that claim.
In September 1999, the veteran filed the current claims of
entitlement to earlier effective dates for service connection
for post-traumatic stress disorder, hearing loss, and
labyrinthitis.
The effective date of an award of disability compensation
based on direct service connection shall be the day following
the veteran's separation from active service or the date
entitlement arose if a claim is received within one year
after separation from service; otherwise, the effective date
shall be the date of receipt of claim, or date entitlement
arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R.
§ 3.400(b)(ii)(B)(2). Unless specifically provided, the
effective date will be assigned on the basis of the facts as
found. 38 C.F.R. § 3.400(a). There are no specific
statutory or regulatory provisions governing secondary
service connection.
Upon application of the governing law to the preceding facts,
since July 13, 1993, was the date that the veteran's claim
for entitlement to service connection for post-traumatic
stress disorder was received, that date (by virtue of date of
receipt of claim) represents the earliest effective date for
the grant of service connection for post-traumatic stress
disorder. Although post-traumatic stress disorder was not
diagnosed until a subsequent September 1994 VA examination,
and the date of that examination would more properly
represent the effective date of the award of service
connection based upon the date entitlement arose, the Board
will not revisit that decision since the veteran has been
provided with a greater benefit.
The earliest evidence of hearing loss and it secondary
association with the veteran's service-connected otitis media
was contained in the report of a VA examination conducted on
January 31, 1977. That date (the date entitlement arose by
virtue of facts found) represents the earliest effective for
service connection for hearing loss.
By the same token, since the earliest evidence of
labyrinthitis and its secondary association with the
veteran's service-connected otitis media was contained in a
private medical opinion received by VA on August 29, 1977,
that date (the date entitlement arose by virtue of facts
found) represents the earliest effective date for service
connection for labyrinthitis.
With respect to the veteran's claim for entitlement to an
earlier effective date for service connection for post-
traumatic stress disorder, the veteran has argued that he has
been in pursuit of a claim for an anxiety disorder ever since
1977 when his claim for nervousness or anxiety neurosis was
considered, and that the effective date for service
connection for post-traumatic stress disorder should date
back to that time. It is noted, however, that where a prior
claim for service connection has been denied, and a current
claim contains a different diagnosis (even one producing the
same symptoms in the same anatomic system), a new decision on
the merits is required. See Ephraim v. Brown, 82 F.3d 399,
402 (Fed. Cir. 1996). The prior claim of service connection
for nervousness or anxiety neurosis, by law, cannot be
construed as a continuing claim for service connection for
post-traumatic stress disorder. In any event, the claim for
nervousness or anxiety neurosis was denied in 1977, and the
subsequent appeal was denied by the Board in February 1979.
Under the circumstances of this case, the record presents no
basis under applicable laws and regulations to allow
effective dates earlier than July 13, 1993, for service
connection for post-traumatic stress disorder; January 31,
1977, for service connection for a hearing loss disability;
or earlier than August 29, 1977, for service connection for
labyrinthitis, based upon facts found. For that reason, the
appellant's claims for earlier effective dates for those
grants of service connection are not warranted. As the
preponderance of the evidence is against the claims, the
benefit of the doubt rule does not apply.
Clear and Unmistakable Error (CUE)
The veteran through his attorney contends that there was CUE
in a June 1977 rating decision that denied the veteran's
claim of entitlement to service connection for an anxiety
neurosis, characterized as nervousness. They argue that when
the RO denied the veteran's claim, they never considered the
April 1977 report of a VA neuropsychiatric examiner, Dr. O.F,
who concluded that the veteran's anxiety neurosis was
secondary to his service-connected ear trauma.
The pertinent evidence of record shows that a June 1977
rating decision denied service connection for nervousness.
It further shows that the veteran perfected an appeal of that
decision. A February 1979 Board decision, however, denied
the veteran's appeal as to the claim of entitlement to
service connection for nervousness. That decision was not
appealed and is now final. A March 1983 Board decision
determined that a new factual basis had not been presented to
reopen the previously denied claim of entitlement to service
connection for anxiety neurosis, characterized as
nervousness.
Applying the law to the preceding facts, the June 1977 rating
decision by the RO that denied entitlement to service
connection for an anxiety neurosis, characterized as
nervousness, was subsumed in the subsequent February 1979
Board decision. 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1104.
A clear and unmistakable error review of RO decisions
subsumed into a Board decision does not exist as a matter of
law. Wright v. Brown, 9 Vet. App. 300 (1996). Thus, the
veteran's contention that the June 1977 rating decision that
denied service connection for an anxiety neurosis should be
reversed in order to warrant the grant of service connection
lacks legal merit and must be dismissed.
ORDER
Entitlement to a disability rating in excess of 10 percent
for otitis media is denied.
Entitlement to an effective date earlier than July 13, 1993,
for service connection for post-traumatic stress disorder is
denied.
Entitlement to an effective date earlier than January 31,
1977, for service connection for a hearing loss disability is
denied.
Entitlement to an effective date earlier than August 29,
1977, for service connection for labyrinthitis is denied.
The claim of entitlement to a grant of service connection for
an anxiety neurosis, characterized as nervousness, on the
basis of the assertion of clear and unmistakable error in a
June 1977 rating decision is dismissed.
____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs